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THE GROWTH OF JUDICIAL 
POWER 



^0 



BY 

W. F. DODD 



REPRINTED FROM POLITICAL SCIENCE QUARTERLY 
Vol. XXIV., No. 2 



BOSTON 

PUBLISHED BY GINN & COMPANY 

1909 



A 



^^9 



M V S4 



THE GROWTH OF JUDICIAL POWER 

ALTHOUGH our written state constitutions have reached 
such enormous proportions, it should be remembered 
that there is also a large body of unwritten constitu- 
tional law controlling both state and federal governments. 
It is my purpose here to discuss briefly an important develop- 
ment in the field of the unwritten constitution, namely, the change 
which has come about in the attitude of the courts toward legis- 
lation, especially with reference to the exercise of the judicial 
power of declaring laws unconstitutional. 

Until a few years ago the attitude of the courts on this sub- 
ject conformed rather closely to the view expressed by Chief 
Justice Waite in the Sinking Fund Cases: " Every possible pre- 
sumption is in favor of the validity of a statute, and this con- 
tinues until the contrary is shown beyond a rational doubt." ' 
The courts still repeat expressions of this character, but it is 
undoubtedly true that they have departed widely from the doc- 
trines which such expressions embody. The principle that a 
statute must not be declared invalid unless its inconsistency with 
the constitution is clear and beyond reasonable doubt has, as 
Judge Baldwin suggests, become untenable, because such decis- 
ions are frequently rendered by a divided court, whose dissent- 
ing members must be presumed to have a reasonable doubt re- 
garding the question of unconstitutionality.* In fact, it may 
be said to be true that practically all important decisions de- 
claring statutes unconstitutional are now rendered by divided 
courts. 

* 99 U. S. 7CXJ, 718 (1878). * Baldwin, American Judiciary, p. 103. 

193 



194 POLITICAL SCIENCE QUARTERLY [Vol. XXIV 

In the case of Atkin v. Kansas,' involving a Kansas statute 
establishing an eight-hour day for state and municipal public 
works, Mr. Justice Harlan, who delivered the opinion of the 
court, said : 

No evils arising from such legislation could be more far-reaching than, 
those that might come to our system of government if the judiciary, 
abandoning the sphere assigned to it by the fundamental law, should 
enter the domain of legislation, and upon grounds merely of justice or 
reason or wisdom annul statutes that had received the sanction of the 
people's representatives. 

In Lochner v. New York,^ we find Justice Harlan now in a 
dissenting opinion, using similar language with reference to 
the New York law limiting labor in bakeries to ten hours a 
day. Justice Harlan's expressions are cited not to imply any 
great change of mind on the part of the Supreme Court of the 
United States within the period of less than two years interven- 
ing between these decisions, but simply as indicative of a change 
which has been going on for a number of years in the attitude 
of the courts toward legislation. 

The courts have now definitely invaded the field of public 
policy and are quick to declare unconstitutional almost any laws 
of which they disapprove, particularly in the fields of social and 
industrial legislation. The statement still repeated by the 
courts, that laws will not be declared unconstitutional unless 
their repugnance to the constitution is clear beyond a reason- 
able doubt, seems now to have become " a mere courteous and 
smoothly transmitted platitude." 

As an indication of the present attitude of the courts may be 
mentioned some recent decisions declaring unconstitutional laws 
affecting the payment of wages by employers. Such acts, when 
held invalid, have usually been declared unconstitutional as a 
violation of the right of liberty and property, or as a discrimi- 
nation between different employments. Thus in Kellyville Coal 
Company v. Harrier,' an act forbidding employers engaged ia 

1 191 U. s. 223 (1903). * 198 U. S. 45, 74 (1905)- 

' 207 111, 624 (1904). 



^ 



No. 2] THE GROWTH OF JUDICIAL POWER .j^j 

mining or manufacturing to make deductions for advances to 
employees, except when such advances were made in money, 
was held invalid as depriving both employer and employee of 
liberty and property, and as a discrimination in favor of farm- 
ers, who were not included in the terms of the law. So in 
Toledo, St. Louis and Western Railroad Company v. Long,' an 
act requiring corporations to pay their employees in money was 
held invalid as depriving corporations of the equal protection of 
the laws. In Missouri and Texas similar laws, which were not 
discriminatory but which applied equally to all corporations and 
individuals, have recently been held unconstitutional as violat- 
ing the rights of liberty and property.^" State anti-trust statutes 
have frequently been held unconstitutional because they ex- 
cepted from their provisions agricultural products and livestock 
while in the hands of the producers.3 In the case of Starne v. 
People,'^ the supreme court of Illinois held unconstitutional a 
statute requiring mine owners to provide washrooms at the top 
of each coal mine for the use of their employees, on the ground 
that this was an improper discrimination in favor of miners. 

It is submitted that these decisions have extended very 
widely the provisions of the federal and state constitutions. 
he courts seem now to have reached the point of treating as 
unconstitutional practically all legislation which they deem un- 
wise.s The courts will, if they desire, find sufficient reason for 
declaring a statute invalid either ( i ) as violating the right of 
contract, or (2) as depriving persons of liberty and property 
without due process of law, or (3) as depriving them of the 
equal protection of the laws. These broad guaranties of the 
federal and state constitutions have been so extended by judicial 
interpretation as to give the courts in practically every case the 
final determination as to whether or not laws shall be enforced, 

' 169 Ind. 316 (1907). 

* State z/. Missouri Tie and Timber Company, i8i Mo. 536(1904); Jordan z/. 
State, 51 Tex. Crim. Rep. 531 (1907). 

'Connolly v. Union Sewer Pipe Company, 184 U. S. 540. See Ernst Freund, 
Police Power, sees. 310-321, 356, 734. 

* 222 111. 189 (1906). 

* Ernst Freund in Green Bag, vol. xvii, p. 416. 



jg5 POLITICAL SCIENCE QUARTERLY [Vol. XXIV 

and the exercise of this power is untrammeled in fields where 
new legislation may be enacted to apply to changing industrial 
and social conditions.' ' 

Special attention should be called to the present judicial in- 
terpretation of the phrase, " equal protection of the laws." The 
courts lay down a standard of theoretical equality, without much 
reference to the facts in particular cases, and declare invalid 
laws which do not square with their a priori theories. Thus in 
the Kellyville Coal Company case, cited above, the court held 
it improper to exclude farmers from the operation of a law 
against the payment of employees in store orders, but did not 
take into consideration the fact that the evils aimed at could 
1 hardly exist in the field of agriculture. So state and federal 
decisions declaring state anti-trust laws unconstitutional, because 
not made applicable to possible combinations of farmers, do 
not consider that the nature of the farming industry makes 
practically impossible among farmers such combinations as are 
denominated " trusts." It is a serious question also whether 
the courts have a sufficient basis of fact on their side in declar- 
ing unconstitutional laws which discriminate between corpora- 
tions and individuals with reference to the payment of wages 
and as regards employers' liability.^ Inasmuch as abuses are 
most apt to occur in large industries and as practically all large 
industrial activities are now conducted under corporate organ- 
ization, it would seem that corporations as distinct from indi- 

' As to the extension of the term " liberty " by judicial interpretation, see Charles 
E. Shattuck in Harvard Law Review, vol. iv, p. 365. With reference to the right 
of contract, attention should be called to the Missouri Tie and Timber Company 
case, cited above, and to People v. Williams, 189 N. Y. 131 {1907). In the latter 
case the court held invalid as repugnant to the state constitution a law forbidding 
night work by women. It may be well, however, to call attention to the fact that 
the attitude of the courts toward legislation is not the same in all states. The courts 
of some states have often used the argument of public policy to broaden the inter- 
pretation of constitutional provisions and to uphold new legal regulations. Yet it 
does seem to be true that the courts of a number of the important industrial states 
have usually exercised their power for the purpose of defeating new legislation with 
reference to industrial and social conditions. 

'Toledo, St. Louis and Western Railroad Company^. Long, 169 Ind. 316 (1907); 
Bradford Construction Company v. Heflin, 88 Miss. 314 C1906); Bedford Quarries 
Company v. Bough, 168 Ind. 671 (1907). 



No. 2] THE GROWTH OF JUDICIAL POWER 197 

viduals may well form a separate class with reference to these 
matters. In a number of cases during recent years the Illinois 
court has extended very widely the constitutional guaranty of 
" equal protection of the laws." ' In Starne v. People, cited 
above, the court refused to consider the question of fact as to 
whether the mining of bituminous coal is not work of such a 
character as to justify special provision for wash-rooms, but 
broadly declared that " the legislature cannot ameliorate the 
coal miner's condition under the guise of the exercise of the 
police power and leave others unaided who suffer from like 
causes." This statement seems to deprive the legislature of all 
power of determining the question of means for the accomplish- 
ment of its objects, and to vest in the courts the whole power 
of deciding as to the reasonableness and propriety of legislation. 
Perhaps the furthest step in extending the application of the 
phrase " equal protection of the laws " has been taken by the 
Missouri court in State ex rel. Johnson v. Chicago, Burlington 
and Quincy Railroad Company.* In this case there was under 
consideration a state constitutional amendment permitting 
counties and towns to levy road and bridge taxes, but from the 
provisions of this amendment were excepted St. Joseph, St. 
Louis and Kansas City. The court held the amendment in- 
valid as a deprivation of " equal protection of the laws" under 
the federal constitution, on the ground that it was a discrimina- 
tion in favor of the excepted cities against other parts of the 
state.3 

The present attitude of the courts seems fully to justify Pro- 
fessor Pound's criticism of their " narrow and illiberal construc- 
tion of constitutional provisions, state and federal." * The 
courts have now become practically legislative organs with an 

* James M. Matheny in Illinois Law Review, vol. iii, p. 131. 

' 195 Mo. 228 (1905). 

'In 1908 another constitutional amendment with reference to road and bridge 
taxes was adopted and was made applicable to the whole state. 

*Roscoe Pound in Harvard Law ^^fiVrw, vol. xxi, p. 383. See also Peoples. 
Brock, 149 Mich. 464 (1907). In this case the court read into the constitution a 
guaranty regarding criminal trials and then held a law invalid as violating such im- 
plied constitutional guaranty. 



ipg POLITICAL SCIENCE QUARTERLY [Vol. XXIV 

absolute power of veto upon statutory legislation which they 
regard as inexpedient.' If we may judge by a recent Indiana 
case, in which the court declared a statute unconstitutional when 
the question of constitutionality had neither been raised nor 
argued before the court, it would seem that judicial decisions 
of this character may in future be made after less careful con- 
sideration than heretofore.^" 

Since 1902 the New York State Library has annually col- 
lected in its Index of Legislation a list of judicial decisions de- 
claring state laws to be invalid. A statement of the number of 
occasions on which the judicial veto upon state laws has been 
exercised is of some interest. 

YEARS. BY STATE COURTS. BY U. S. SUPREME COURT. 

1901-02 72 

1902-03 48 2 

1903-04 57 3 

1904-05 52 2 

1905-06 ...... 103 I 

1906-07 94 5 / 

The invasion of the field of public policy by the courts in- 
troduces into the law an added element of uncertainty. In this 
field decisions of the courts necessarily depend not upon any 
fixed rules of law but upon the individual opinions of the 
judges on political and economic questions ; and such decisions, 
resting, as they must, upon no general principles, will be es- 
pecially subject to reversal or modification when changes take 
place in the personnel of the courts.^ Moreover there can be 
no certainty as to whether laws will stand, until after they have 

^Learned Hand in Harvard Law Review, vol. xxi, p. 501. The constitutions of 
Missouri, Minnesota, Kansas, Alabama and Michigan expressly give the courts super- 
visory control over the exercise by the legislatures of power to enact local and special 
legislation. The Michigan provision for this purpose (article v, section 30) reads: 
" The legislature shall pass no local or special act in any case where a general act can 
be made applicable, and whether a general act can be made applicable shall be a 
judicial question." 

*Kraus v. Lehman, 83 N. E, 714. Clarence R. Martin in American Law Re- 
view, vol. xlii, p. 641. 

'Baldwin, American Judiciary, p. 117. Ernst Freund, in Green Bag, vol. xvii, 
p. 416. 



No. 2] THE GROWTH OF JUDICIAL POWER 199 

been passed upon by the higher courts. Those able to contest 
a law immediately upon its first going into effect will avoid its 
application if it should finally be declared unconstitutional, but 
those not contesting its constitutionality must obey it until it is 
declared invalid. The present practice of treating a law as 
valid until it has been declared unconstitutional by the courts, 
illogical though it is, can hardly be abandoned so long as courts 
hold to the doctrine that the constitutionality of a law may be 
passed upon only for the purpose of deciding a litigated question 
actually submitted to the court. A decision declaring a statute 
unconst'tutional now works in effect as a repeal operative only 
for the future, except as to the acts under the statute which 
are being contested before the courts and as to acts not fully 
completed when the decision is rendered. The more logical 
view that all acts done under an unconstitutional law shall be 
treated as invalid may at some time be taken by the courts ; 
but such a doctrine would introduce even more uncertainty than 
the present practice ; and it would cause important laws to be 
practically d'sregarded until they had obtained judicial ap- 
proval, for one acting upon the faith of a law not so tested 
would be actirg at his peril.' Such a step would also consti- 

'The present legal theory is that a law declared unconstitutional can have con- 
ferred no authority or rights. This theory is well expressed by Mr. Justice Field in 
Norton v, Shelby Qunty, 118 U. S. 442; "An unconstitutional act is not a law; it 
confers no rights; it 'mposes no duties; it affords no protection; it creates no office; 
it is, in legal conteirplation , as inoperative as though it had never been passed." 
But the legal practice is different: (i) The federal courts protect contract rights ac- 
quired under a state satute declared unconstitutional, and they now seem inclined to 
protect property rights acquired in a similar manner. (2) Taxes voluntarily paid 
under an unconstitutional law may not be recovered, and the word "voluntary" is 
interpreted to cover almost all forms of payment. (3) A person holding an office 
created by an unconstiutional statute is a de facio officer, whose acts are valid with 
reference to third parties and to the public. {Cf. Wallach, "De Facto Office," 
Political Science Qu\rterly, vol. xxii, p. 450.) (4) There is now a tendency on the 
part of the courts to tnat a corporation organized under an unconstitutional law as a 
de facio corporation, and so to protect rights which it may have acquired. (5) Many 
statutes are of such a :haracter that a decision declaring them unconstitutional can 
properly operate only for the future. So in State v. Beacom, 66 Ohio St. 491, 
the law under which the city government of Cleveland had operated for more than 
ten years was declared to be invalid, but the court, far from holding all acts under 
the law to be void, suspended judgment so as to permit the city to be governed for 
almost another year under the invalid statute. (6) A declaration that a criminal 



200 POLITICAL SCIENCE QUARTERLY [Vol. XXIV 

tute the courts more clearly a portion of the legislative ma- 
chinery than at present, in as much as it would necessarily raise 
a presumption against the validity of a law until after the courts 
had held it to be constitutional. 

It is in point to inquire as to the competence of the courts 
to exercise revisory power over legislation.' As Professor 
Pound has remarked : 

Courts are less and less competent to formulate rules for new lelations 
which require regulation. They have the experience of the past. But 
they do not have the facts of the present. They have but one case 
before them, to be decided upon the principles of the past, the equities 
of the one situation, and the prejudices which the individualism of 
common- law institutional writers, the dogmas learned in a college 
course in economics and habitual association with the business and 
professional class must inevitably produce. It is a sound instinct in 
the community that objects to the settlement of questions of the 
highest social import in private litigations between John Doe and 
Richard Roe." 

Judges of our higher courts represent the training and opinions 
of the past and are not proper persons to determine questions 
of policy with reference to new industrial or social conditions. 
Whether or not it may be of importance, it is nevertheless true 
that courts exercise their power to declare laws invalid, where 
the laws are not clearly repugnant to the constitution, most fre- 
quently in cases under the police power involring the protec- 

statute is invalid would operate to discontinue proceedings pending under the act, 
and would entitle persons at the time imprisoned under the ac' to demand that they 
be released ; but a person who has already served a term of inprisonment under the 
law would have little if any remedy. 

1 It is beyond the scope of this paper to discuss the effect of judicial supervision 
upon the quality of the legislative product. It may be well to remark, however, that 
the legislatures are thus deprived of much of the small share of responsibility which 
has been left to them by the written constitutions of the states. It is also beyond the 
scope of this paper to discuss the effect of unwise and careless state legislation in 
producing the present attitude of the courts. 

* Roscoe Pound, "Common Law and Legislation ", Harvird Law Review, vol. 
xxi, p. 403. This article is an able criticism of the present attitude of the courts 
toward legislation. 



No. 2"! THE GROWTH OF JUDICIAL POWER 20 1 

tion of the public or of laborers.* The courts on this account 
have given weight to popular criticism of the judicial branch of 
our government as unduly favorable to the so-called vested 
interests. 

In the sixteenth and seventeenth centuries the judiciary stood between 
the public and the crown. It protected the individual from the state 
when he required that protection. Today, when it assumes to stand 
between the legislature and the public and thus again to protect the 
individual from the state, it really stands between the public and what 
the public needs and desires, and protects individuals who need no 
protection against society which does need it. Hence the side of the 
courts is no longer the popular side.* 

It has already been noted that state courts can and in many 
cases do exercise an absolute veto upon state statutes. This 
veto is usually interposed upon the ground that the statute un- 
der consideration is repugnant to the provisions of the state 
constitution. The states, however, have another legislative pro- 
cess superior to the enactment of statutes by the state legisla- 
tures, and may, if sufficient interest be manifested in the meas- 
ure which the state courts have declared invalid, overrule these 
courts by placing the substance of the invalidated law in the 
state constitution, either by an amendment or in connection with 
a general revision. A tendency to overrule judicial decisions by 
constitutional alterations has been clearly apparent in recent 
years.3 Thus in 1899 the supreme court of Colorado, upon 

^ Many courts have held labor legislation invalid on the specious argument that it 
deprives the laborers themselves of constitutional rights. See, for example, in God- 
charles v. Wigeman, 113 Pa. St. 431, an eloquent defense of the laborer's rights of 
liberty and contract, while the court in its decision extends the phrase " right of con- 
tract " in such a manner as to declare unconstitutional legislation beneficial to labor- 
ers. The language of the Godcharles case was recently quoted with approval in 
State V. Missouri Tie and Timber Company, 181 Mo. 536. As to the aUitude of the 
courts toward injured employees, see an article by William Hard in Everybody s^ 
September, 1908. See also H. R. Seager in Political Science Quarterly, vol. xix, 
p. 589. 

' Roscoe Pound in Harvard Law Review, vol. xxi, p. 403. 

' Attention should be called to the fact that this discussion relates simply to cases 
in which laws have been declared unconstitutional where their repugnance to the con- 
stitution is not clearly apparent. Many cases of course arise in which restrictions im- 



202 POLITICAL SCIENCE QUARTERLY [Vol. XXIV 

arguments that are at least questionable, held invalid as in 
violation of the constitution of that state a legislative act limiting 
a day's labor in mines and smelters to eight hours. In 1902 a 
constitutional amendment was adopted by the people of Colorado 
fixing eight hours as a working day in mines.' Montana in 
1904 and Oklahoma in 1907 introduced into their constitutions 
provisions limiting a day's labor in mines to eight hours. A 
series of decisions by the New York Court of Appeals, begin- 
ning in 1 90 1, held unconstitutional state statutes regulating 
hours and conditions of labor on state and municipal public 
works. =" An amendment to the constitution of New York, 
adopted in 1905, provides that the legislature shall have power 
to " regulate and fix the wages or salaries, the hours of work or 
labor, and make provision for the protection, welfare and safety 
of persons employed " by the state or any civil division thereof, 
or on public contracts. California in 1902, Montana in 1904 
and Oklahoma in 1907 adopted constitutional provisions estab- 
lishing an eight-hour day upon state and municipal public 
works. California, after three unsuccessful attempts of its 
legislature to enact a primary election law which would meet 
judicial approval, in 1899 adopted a constitutional amendment 
upon this subject in order to overcome difficulties raised by the 
court.3 Michigan in 1902 by constitutional amendment author- 
ized its legislature to provide by law for indeterminate sen- 
tences, thus overcoming a decision of the supreme court of that 
state declaring such a law unconstitutional.'* New Hampshire 

posed by one constitution are later deemed unwise and are removed either by amend- 
ment or constitutional revision, but such cases are not in point. No effort is made 
here to call into question the exercise of power by the courts where a statute is 
clearly repugnant to constitutional provisions. 

^ In re Morgan, 26 Colo. 415. See also Ernst Freund, Police Power, sec. 155. 

* People V. Coler, 166 N. Y. i; People v. Orange County Road Construction 
Company, 175 N. Y. 84; People v. Grout, 179 N. Y. 417. See also Cleveland v. 
Construction Company, 67 Ohio St. 197 (1902). 

' E. C. Meyer, Nominating systems, pp. 196, 354. Marsh v. Hanley, 11 1 Cal. 
368; Spier V. Baker, 120 Cal. 370; Britton v. Board, 129 Cal. 337. 

* People V. Cummings, 88 Mich. 249; In re Campbell, 138 Mich. 597; In re 
Manaca, 146 Mich. 697. The indeterminate sentence provision is repeated in the 
Michigan constitution of 1908, art. v, sec. 28. 



No, 2] THE GROWTH OF JUDICIAL POWER 203 

in 1903 adopted a constitutional amendment specifically author- 
izing- the taxation of franchises and inheritances, in order to 
overcome decisions of the supreme court of that state that such 
taxes were unconstitutional.' The constitutional provisions of 
Mississippi (1890), Virginia (1902) and Oklahoma (1907), 
abrogating or partially abrogating the common-law fellow- 
servant rule, do not appear to have been occasioned by judicial 
decisions, but they were probably intended as precautionary 
measures, and they seem justified in view of the narrow inter- 
pretation given by the supreme court of Mississippi to the con- 
stitutional and statutory provisions of that state upon this 
subject." 

A recent writer has said that " if the court is to retain the 
absolute right to pass in the final result on the expediency of 
statutes passed by the legislature," some change will be neces- 
sary either in the courts or in the constitution.^ As has been 
indicated above, a change is rapidly taking place in our state 
constitutions, and these constitutions are being turned " from 
fundamental frames of government into statutory codes," largely 
because of the narrow and illiberal attitude of the courts in in- 
terpreting constitutional provisions. This development will 
probably go further than it has yet gone, and we may reason- 
ably expect provisions to be introduced into state constitutions 
regarding employers' liability, hours of labor, payment of 
wages and other matters affecting industrial and social relations, 
where such provisions may be thought necessary to overcome 
judicial decisions of the states or may be thought desirable as 
measures of precaution against decisions which the courts might 
otherwise render. 

State constitutional amendments of this character, made 
necessary by judicial decisions, are of course binding upon state 
courts only as regards the power of these courts to declare laws 

^ State V. United States and Canada Express Company, 60 N. H. 219; Curry v. 
Spencer, 61 N. H. 624, Journal of New Hampshire Constitutional Convention of 
1902, p. 596. 

* Bradford Construction Company v. Heflin, 88 Miss. 314 (1906). 

^ Learned Hand in Harvard Law Review, vol. xxi, p. 500. 



204 



POLITICAL SCIENCE QUARTERLY [Vol. XXIV 



invalid as in violation of state constitutions. The state courts 
are still free to declare state laws or state constitutional provi- 
sions invalid as in violation of the federal constitution ; and if 
bound by definite provisions in state constitutions, they will 
probably base their decisions regarding the invalidity of laws 
upon the federal constitution.' If the highest court of a state 
declares a state statute or a state constitutional provision invalid 
as in violation of the federal constitution, its decision is final, 
for there is no appeal to the United States Supreme Court from 
a state decision invalidating a state enactment as repugnant to 
the constitution or laws of the United States. The state courts 
may on this account limit the power of the states to a very 
great extent, in matters not already passed upon by the Supreme 
Court of the United States, and from their decisions there is 
now no appeal, although, of course, it is possible for the United 
States by act of Congress to permit appeals to the federal 
Supreme Court in such cases. 

In matters with which the Supreme Court of the United 
States has had occasion to deal, the state courts are bound by 
the interpretation which the federal tribunal has placed upon 
the federal constitution. As regards measures already upheld 
by the United States Supreme Court, the states will be to a 
large extent freed from restrictions placed upon them by state 
judicial decisions declaring laws invalid, and may with impunity 
enact into their constitutions any provisions which the fed- 
eral Supreme Court has in its wisdom held proper and ex- 
pedient. Thus the states may, if they find it necessary to 
overcome state judicial decisions, insert in their constitutions 
provisions establishing an eight-hour day on public works ^ or 

' As, for example, in State ex. rel. Johnson v. Chicago, Burhngton and Quincy 
Railroad Company, 195 Mo. 228 (1905). Statutory alterations of state constitutions, 
such as are permitted in Virginia and Oklahoma, will of course be regarded by the 
courts simply as ordinary statutes. It is a question whether the distinction between 
state statutes and state constitutions is not breaking down, and whether the state 
courts are not becoming as free to declare state constitutional provisions invaUd be- 
cause repugnant to the federal constitution as state and federal courts are to declare 
statutes invalid as repugnant respectively to the state or federal constitutions. Thayer, 
Legal Essays, pp. 37, 38. See note in Illinois Law Review, vol. iii, p. 303. 

'Atkin V. Kansas, 191 U. S. 207. 



No. 2] THE GROWTH OF JUDICIAL POWER 305 

in mines,' a ten-"hour day for females in laundries,* but not a 
ten-hour day for both males and females in bakeries, 3 or a 
truck act applying to all employers/ 

The point which I wish to make is that if the highest state 
court declares a state law invalid as in violation of the state 
constitution such a decision is final. If, however, legislation 
upon the matter in question is introduced into the state consti- 
tution, the state court, if it again holds the enactment invalid, 
must declare it to be so because of its repugnance to the fed- 
eral constitution, and in the latter case the state court is bound 
by the decisions of the Supreme Court of the United States 
interpreting the federal constitution with reference to the mat- 
ter under consideration. For example, if an act establishing 
an eight-hour day in mines were held invalid as violating a 
state constitution, such legislation might then be introduced by 
amendment into the state constitution itself. The state court 
cannot then declare the eight-hour law for mines invalid as a 
violation of the federal constitution, because the Supreme Court 
of the United States has already held such a law not to be un- 
constitutional. 

The state courts will thus continue to possess what is prac- 
tically an absolute veto on state statutory legislation, and on 
state constitutional provisions which have not already been ap- 
proved in substance by the Supreme Court of the United States. 
By introducing legislation into their state constitutions the states 
will, however, be entirely free to act within the fields in which 
legislation has already been upheld by the Supreme Court of 
the United States. Only legislation which has been passed 

1 Holden v. Hardy, 169 U. S. 366. 

* Muller V, Oregon, 208 U. S. 412. Under the Illinois case of Ritchie v. People, 
155 111. 98, and under the New York case of People v. Williams, 189 N. Y. 131, it 
would seem that constitutional enactments will be necessary in these states to permit 
even such state legislation regarding the labor of women as was upheld by the United 
States Supreme Court in Muller v. Oregon. 

^ Lochner v. New York, 198 U. S, 45. 

* Knoxville Iron Company v. Harbison, 183 U. S. X3. Under Missouri Pacific 
Railway Company v. Mackey, 127 U. S. 205, and Railroad Company v. Pontius, 
157 U. S. 209, it would seem that the states may also safely abrogate the fellow- 
servant rule with reference to hazardous employments. 



2o6 POLITICAL SCIENCE QUARTERLY [Vol. XXIV 

upon by the highest federal court may be safely introduced into 
state constitutions for the purpose of overcoming state judicial 
decisions. When introducing legislation into its constitution 
which has not been so tested, a state will naturally prefer to 
have the validity of such legislation contested in the federal 
rather than in its own courts, for it would thus avoid possible 
annulment of the enactment by the state court and would have 
the opportunity to obtain a final adjudication by the Supreme 
Court of the United States. 

It may be objected that this simply results in transferring the 
judicial veto of legislation from one body to another, or rather 
from several bodies to one, leaving the Supreme Court of the 
United States to determine finally upon the expediency of all 
legislation, both federal and state ; that it simply results in 
augmenting still further the powers of the federal government 
at the expense of the states.' This is true, but such a result, 
while not satisfactory, is better than the present condition, 
under which a court may block legislation in its own state while 
all other state courts and the Supreme Court of the United 
States may permit such legislation as not in conflict with con- 
stitutional provisions similar to those of the state in which such 
legislation is held invalid. One uniform rule, though unwise, 
is probably better than different rules for each of the forty-six 
states. 

Yet it is hardly proper in this connection to speak of the 
judicial decisions as establishing rules or principles. When the 
courts invade the field of public policy and pass upon the ex- 
pediency or inexpediency of legislation, their decisions neces- 
sarily depend not upon any fixed rules of law but upon the in- 
dividual opinions of the persons composing the court; and 
though in course of time precedents will be established upon a 
large number of questions, they will probably not obtain force 
as announcing or illustrating general principles, but simply as 

^ The Supreme Court of the United States has already in recent years enlarged its 
jurisdiction with reference to state laws by refusing to follow judgments of state 
courts interpreting laws of their states and by itself determining whether the state 
courts have given proper effect to their state laws. See Henry Schofield in Illinois 
Law Review, vol. iii, p. 195, and Ernst Freund in Green Bag, vol. xvii, p. 412. 



No. 2] THE GROWTH OF JUDICIAL POWER 207 

determining the precise questions upon which the court has 
passed, on the basis of the facts presented in each case/ Any- 
one attempting to harmonize the cases of Holden v. Hardy, 
Lochner v. New York and MuUer v. Oregon will find it diffi- 
cult to discover in them any common principle. The tendency 
of the Supreme Court of the United States to limit itself to the 
facts of the particular case in matters of this character is €£•» 
pecially apparent in Muller v. Oregon. In this case a statute 
was under consideration limiting the labor of women to ten 
hours a day " in any mechanical establishment, or factory or 
laundry." The case before the court involved the violation of 
this law with respect to a laundry, but would seem to have 
brought the validity of the whole statute into consideration. 
The court held that the act was not in conflict with the federal 
constitution " so far as it respects the work of a female in a 
laundry," thus leaving open for future decision the question of 
the constitutionality of the Oregon statute in so far as it affects 
a " mechanical establishment or factory." 

It would be better if the courts were to leave the determina- 
tion of legislative policy to the legislative bodies and were to 
construe constitutional provisions broadly and liberally. The 
courts might properly narrow to more nearly their true meaning 
the broad guaranties of the federal and state constitutions. 
They might, for example, logically and consistently refuse to 
declare lavv^s unconstitutional as depriving individuals of the 
" equal protection of the laws," unless those objecting to 
the law could show that its operation was clearly unequal and 
that it imposed a burden out of proportion to the benefit ob- 
tained. However, there is little reason to expect that the fed- 
eral and state courts will in the near future adopt a more 
liberal attitude toward legislation. 

W. F. DODD. 
Johns Hopkins University. 

' Learned Hand in Harvard Law Review, vol. xxi, p. 501. 



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